No jury trials for civil cases makes American Samoa High Court inadequate forum
Pago Pago, AMERICAN SAMOA — “American Samoa would be an inadequate forum” to hear claims under the federal Jones Act by relatives of a US seaman who died in the territory, because the “High Court of American Samoa does not conduct jury trials in civil actions,” declared attorneys for plaintiffs in a case before the federal court in Santa Ana, California.
Two members of the American Samoa Bar Association confirmed yesterday to Samoa News that there are no jury trials for civil cases in the High Court, where a similar case was filed last year over the death of Michael Castaneda, who died after he fell overboard the US vessel, Cape Ferrat, while it was docked at the Samoa Tuna Processors (STP) Inc., wharf in Atu’u.
Defendants in the federal case include the fishing vessel owner, Cape Ferrat Fishing Lp., along with Tri Marine Group’s five entities — including STP, Samoa Fishing Management (SFM) Inc., and Tri Marine Fish Company (TMFC).
Late last year, the defendants filed at the federal court a motion to dismiss for “forum non conveniens”. A hearing for the motion is set for Jan. 28th.
According to the Legal Information Institution, housed at Cornell Law School in New York, “Forum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case” (www.law.cornell.edu).
Attorneys for the defendants explain that the motion to dismiss is based on the grounds that American Samoa is an available and adequate forum that is more convenient for the parties and for adjudication of this case, which centers around events that took place exclusively in American Samoa. (See Samoa News Nov. 6, 2018 edition for details.)
On Monday this week, plaintiffs asked the federal court to dismiss the defendants’ motion. Plaintiffs first point out that their “in rem” action filed in the High Court of American Samoa was against the fishing vessel to “secure [the] claims” in the lawsuit.
Plaintiffs believe that the vessel is “legally owned by a shell company with little or no assets” and insured by P&I insurance which is a Scandinavian company.
According to plaintiffs, the defendant, TMFC, does not challenge the applicability of the U.S. Jones Act, but only argues that the courts of American Samoa are capable of adjudicating Jones Act cases. However, TMFC ignores well-settled law in the Ninth Circuit that Jones Act cases cannot be dismissed on the basis of forum non conveniens, they argue.
Moreover, regardless of the application of the U.S. Jones Act, the current action should not be dismissed because defendants have not met its heavy burden of demonstrating that it bears a significantly disproportionate burden in litigating in this Court compared to Plaintiffs’ burden in moving this case to an alternate forum, especially where plaintiffs are all based in the US mainland and all defendants, except two, are based in Washington and/or California.
“Plaintiffs are of modest means compared with defendants,” the motion notes. “Further, American Samoa would be an inadequate forum for plaintiffs’ Jones Act causes of action where plaintiffs would not be allowed a trial by jury.”
The motion notes that the plaintiffs’ attorneys, William L. Banning, had represented a US seaman in a prior case in American Samoa where the High Court stated that it would not adjudicate a Jones Act case in American Samoa where the seaman filed a jury action in California.
In his declaration filed together with the plaintiffs’ motion for dismissal, Banning — who specializes in Admiralty and Maritime Law — explained that the High Court does not have jury trials for civil action. And he become aware of this issue, when he represented an injured seaman in a case filed in 2010.
In that case, Banning said, the tuna boat owner, insured by the same insurer as Tri Marine, filed a declaratory relief action in the High Court in an attempt to force a seaman’s Jones Act case to be litigated before the High Court as opposed to a federal court in California.
The seaman filed a motion to dismiss the High Court action, arguing that the declaratory relief action would deprive the seaman of his statutory right to a jury and therefore the High Court should not take jurisdiction over the case.
Banning’s declaration summarized the High Court’s decision: “Under the Jones Act, any seaman injured in the course of employment may elect to ‘maintain an action for damages at law, with the right to trial by jury’.”
Additionally, “Where the injured seaman elects for a jury trial on his Jones Act claims, and joins claims for unseaworthiness or maintenance and cure, all of his claims must be submitted to the jury, if the claims arise out of the same set of facts.”
Banning also points out that most of the primary witnesses are in the US mainland, including plaintiffs and defendants. Moreover, the case will involve multiple experts for damages and liability, all of whom are from the mainland.
“There are no such experts located in American Samoa, or at least I am not aware of any,” he said, adding that it will be very expensive to fly these various experts in and out of American Samoa.
He notes that there are limited flights — twice a week — in and out of American Samoa, and connected through Honolulu from the US mainland. Any witness whom travels there will therefore need to stay in American Samoa for several days during trial.
Other witnesses related to this case will include crewmembers, who are usually available in a foreign country, or wherever the vessel docks. Upper management level employees of Tri Marine are normally based in Washington or California. Most witnesses will be originating from the mainland.
Banning informed the court that he believes the defendants already have most of the critical evidence in the case such as videos of the deceased on the night of the accident, the American Samoa Department of Public Safety and Policy Department report, and the autopsy report.
Banning further argues that American Samoa is a remote island Territory with “limited infrastructure which is often unreliable”. For example, there is limited access to Internet, print services, phone and access to technology that would be necessary to adequately prosecute this case during trial.
“In my experience, it is not unusual for the entire island of American Samoa to lose access to internet and even phone services for days at a time,” Banning claimed. “Even when internet is available it is extremely slow and would result in great difficulty gaining access to documents and information necessary for trial.”